FIFTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 26128/03 by K.S. AND M.S. against the Czech Republic

The European Court of Human Rights (Fifth Section), sitting on 12 February 2008 as a Chamber composed of:

Peer Lorenzen , President, Snejana Botoucharova , Karel Jungwiert , Rait Maruste , Renate Jaeger , Mark Villiger , Mirjana Lazarova Trajkovska , judges, and Claudia Westerdiek, Section Registrar ,

Having regard to the above application lodged on 5 August 2003,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together ,

Having regard to the partial decision of 15 November 2005 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants, K .S. and M.S. , are Czech nationals who were born in 1953 and 1958 respectively and live in Toronto . They were represented before the Court by Ms R. Snidr, a lawyer practising in Toronto ( Canada ) . The Czech Government (“the Government”) were r epresented by their Agent, Mr V.A. Schorm , from the Ministry of Justice .

A. The circumstances of the case

The facts of the case, as submitted by the parties , may be summarised as follows.

On 6 September 1994 a certain K. brought an action before the Karviná District Court ( okresní soud ) against the applicants seeking the payment of CZK 229,798.20 (EUR 8,782 [1] ) regarding construction works he had carried out for them.

On 13 March 2003 the applicants filed a counterclaim for the payment of CZK 193,000 (EUR 7,376). At a hearing of 24 April 2003, the District Court decided to exclude the counterclaim for a separate examination. A written decision in this respect was adopted on 9 December 2003.

In a judgment of 1 April 2004 the District Court partly granted K. ’ s action and ordered the applicants to pay him CZK 202,838.60 (EUR 7,752) with interest on late payment.

On 20 June 2006 the Ostrava Regional Court ( krajský soud ), upon the applicants ’ appeal, modified the District Court ’ s judgment in that it dismissed K. ’ s action.

In the meantime, on 9 January 2006, the District Court had partly stayed the proceedings on the applicants ’ counterclaim and ordered K. to pay them CZK 152,866 (EUR 5,842).

On 31 January 2007 the Regional Court quashed this judgment in respect of the court ’ s order that K. had to pay the applicants the sum requested and reimburse them incurred costs and expenses, and sent this part of the case to the District Court.

It appears that the proceedings are still pending.

B. Relevant domestic law and practi ce

The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the Court ’ s decision in the case of Vokurka v. Czech Republic , no. 40552/02 (dec.), §§ 11-24, 16 October 2007).

COMPLAINT

The applicants complained under Article 6 § 1 of the Convention that the civil proceedings had lasted an unreasonably long time .

THE LAW

The applicants complained about the excessive length of the civil proceedings which, according to them, was in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention which, so far as relevant, reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal.”

The Government noted that the applicants could have resorted to the compensatory remedy provided for by Act no. 82/1998.

The Court has already examined that remedy for the purposes of Article 35 § 1 of the Convention and found it effective in respect of certain complaints about the length of judicial proceedings in the Czech Republic . In particular, it considered that the remedy was capable of providing adequate redress for any breach of the reasonable time requirement that has already occurred (see Vokurka v. Czech Republic , cited above, §§ 58-65).

However, the applicants despite having been informed by the Court of the possibility of using this remedy maintained that they should not be required to exhaust such a remedy. It thus appears that they have chosen not to avail themselves of this remedy.

The Court therefore considers that the applicants have not exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention.

The complaint concerning the length of the proceedings must therefore by declared inadmissible according to Article 35 §§ 4 of the Convention.

In view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention and to reject the application.

For these reasons, the Court unanimously

Declares the remainder of the application inadmissible.

             Claudia Westerdiek Peer Lorenzen Registrar President

[1] 1 EUR = 26.26 CZK